Despite willful infringement findings, Judge argues Apple did not prove that it lost its ability to participate

A California federal judge has ordered that while Samsung Electronics Comp., Ltd. (KSC:005930) is guilty of willful infringement of software and design patents held by Apple, Inc. (AAPL), that she would not order a sweeping ban of Samsung smartphones, which Apple had argued for.

I. A Lump of Coal -- Apple Gets no Ban in its Stocking

Apple and Samsung are currently the two mostprofitable and most prolific smartphone makers in terms of U.S. sales. Samsung's recent success was kick-started by the Galaxy S, a phone that some felt borrowed a little too much from the iPhone.

Since then, the tables have turned and it has been Samsung (and its operating system partner Google Inc. (GOOG)) that has been pushing the user interface and form factor envelope. For example, Samsung's flagship Galaxy Note II and Galaxy S3 feature 5.5-inch and 4.8-inch displays, respectively, prompting Apple to begrudging bump its screen size to 4-inches with the iPhone 5.

However, when it comes to banning products, she comments, "There is no suggestion that Samsung will wipe out Apple's customer base or force Apple out of the business of making smartphones. The present case involves lost sales -- not a lost ability to be a viable market participant."

"In sum, to the limited extent that Apple has been able to show that any of its harms were caused by Samsung’s illegal conduct (in this case, only trade dress dilution)," she concludes, "Apple has not established that the equities support an injunction. Accordingly, Apple’s motion for a permanent injunction is DENIED."Apple Denied Motion for Permanent Injunction

II. Ban Could Still be Resurrected

The ruling was in some ways unsurprising as Judge Koh had previously denied a similar request for a U.S. sales ban on the Galaxy Tab.

That means Samsung isn't out of the woods just yet. It's very possible that the likely appeals court -- Court of Appeals for the Federal Circuit -- might order Judge Koh to reconsider a ban. Such an order could force the federal judge's hand.

In fact, that is precisely what happened after Judge Koh denied a request for a preliminary injunction earlier in the case. The Circuit Court ordered [PDF] Judge Koh to reconsider, and she did, issuing the temporary ban. The Circuit Court made its decision, in part, because sales bans are often used in patent infringement cases in the U.S. to provide so-called "injunctive-relief" to the plaintiff.

Apple will likely appeal to the Court of Appeals for the Federal Circuit.

However, there are no guarantees for Apple either. While sales bans are common, the scope and magnitude of the ban Apple is pushing for are rather unprecedented and would represent a U.S. court removing a major participant from the U.S.'s supposedly "free market".

Thus it should be interesting to see what the higher court says when the inevitable appeal does come.

III. Samsung's Request for Retrial Also Smacked Down

Speaking of appeals, Apple did win one small victory in the ruling. Judge Koh denied Samsung's request for a retrial.

Samsung had requested the verdict be tossed and a new trial scheduled after it was revealed that Jury Foreman Velvin Hogan did not reveal, despite direct questioning, that a company tied to Samsung had sued him, and thus might be biased against the device-maker. Mr. Hogan in the 1990s been sued by hard-drive manufacturer Seagate, which today controls Samsung's old hard drive business, after he failed to repay a promissory note after being terminated (reportedly, for misconduct).

The idea was that the Jury Foreman's history could have introduced a bias against Samsung that permeated to other jurors.

It was also known that several jurors had family members who were Apple shareholders, but Judge Koh had previously ruled that was acceptable, in that they would only indirectly profit from Samsung being found guilty, not directly profit. Samsung did not mention that potential conflict of interest in its failed appeal.

Much like the product ban request, Samsung may opt to take its request for a retrial to the Circuit Court.

The Galaxy Note II will be targeted in the second upcoming patent trial in
Apple and Samsung's legal war.

quote: t still looks like Koh is in Apple's pocket. She protected the original verdict, which most observers think is utterly without merit.

Plus Koh is a prime mover in the faking of the lunar landings :P

Most observers do not think the original verdict is utterly without merit only Apple haters do.

Most observers take one look at what Samsung got up to and conclude that Samsung quite clearly copied Apple, both it's product designs, packaging and retail operations. Most observers know that Samsung is a chaebol with a dubious history of corruption whose chairman is a convicted fraudster.

Samsung was stopped seeking sales bans for Apple products such as the iPhone and iPad in lawsuits in five European countries, after being warned by the European Commission against abusing its ownership of patents essential for standards such as 3G networking. Abusing FRAND as retaliation against Apple is par for the course for Android OEMs, in the US, the Federal Trade Commission (FTC) warned earlier this month that letting SEP owners demand sales bans if they disagree on licence payments amounted to a "holdup", and that judges should refuse them. The warning came in a filing in a lawsuit where Google subsidiary Motorola Mobility (MMI), which holds a number of SEPs, is suing Apple; the FTC sided against MMI. The reason that Android OEMs are forced to use FRAND patents in their legal actions is because that's all they have, which is not surprising given how far Apple pulled head of them when it launched the iPhone and rendered their prior IP, other than FRAND, obsolete.

Unfortunately Apple hatred trumps everything, including common sense and ethics, and so we confronted by Apple haters unquestioning support of the worst sort of business practices.

If ( more likely when) Samsung uses it's complete dominance of the Android OEM market to put the screws on Google I wonder which way the the Apple hating numb nuts will jump.